Sex, Love and Moral Control: Exploring the effectiveness and limitations of international and regional human rights law relevant to SOGIESC diverse groups in the quest to invalidate Zimbabwe’s “sodomy” law

Abstract: “Only in the most technical sense is this a case about who may penetrate whom where. At a practical and symbolical level it is about the status, moral citizenship and sense of self-worth of a significant section of the community.” Justice Albie Sachs, National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6, para. 107 More than 70 years after the adoption of the UDHR, which heralded the advent of the modern human rights movement, same-sex attracted persons in over 70 States are under constant threat of harassment, arrest and imprisonment due to the operation of “sodomy” laws effectively criminalising consensual same-sex sexual activity. S 73(1) of the Zimbabwean Criminal Law (Codification and Reform) Act is one such “sodomy” law, and has been used both socially and politically to facilitate stigma and discrimination against same-sex attracted persons in particular and SOGIESC diverse groups in general. Due to the absence of international or regional human rights instruments explicitly extending legal protections to such groups, the realisation of their human rights has occurred by slow degrees on international, regional and domestic fora. On a regional level, “sodomy” laws were first undermined by the ECtHR in 1981, when the Court held that their very existence is a human rights violation. This human rights norm was established internationally by the UNHRC in 1994. International and regional human rights standards on “sodomy” laws then triggered a global wave of domestic legal challenges to those laws, and greatly influenced arguments adopted by litigants and lines of reasoning taken by Courts, namely, to focus on privacy rights and the right to equality/principle of non-discrimination. However, there were significant flaws in the approaches taken by the international and regional (quasi)judicial bodies that weakened the foundations of human rights law on SOGIESC issues. Some of these flaws have been addressed by regional Courts in later years or by domestic Courts through comprehensive, pro homine interpretations of human rights. There is therefore a strong culture amongst domestic Courts of referring not only to international and regional human rights norms and principles, but also to those norms and principles developed by other domestic Courts. Comparative law analyses have thus strengthened the corpus of human rights law relevant to same-sex attracted persons beyond the standards initially set by international and regional human rights law. Nevertheless, in the context of Zimbabwe, considerations of the importance of culture and traditional values, compounded with deeply entrenched social and political stigma, are brought to bear on the question of whether s 73(1) complies with human rights norms. These issues significantly complicate prospects for the invalidation of “sodomy” laws through judicial intervention, especially when the simultaneously occurring trends of human rights promotion and restriction on the wider African continent are taken into account.